When Does My Child Need a Guardian?
By Salvatore M. Di Costanzo, Esq. – A guardian is an individual (or sometimes an entity) appointed by the Court to handle the personal and/or financial affairs of a minor child. In New York, a child under the age of eighteen is considered a minor. Usually, the Court appoints a guardian for both the person and property of a minor, but sometimes, the appointment is for only the person or only the property. Once a guardian is appointed, the guardian and the Court jointly manage the minor’s financial assets until the child reaches eighteen years of age.
Any person may petition the Court to become the appointed guardian, even if the minor child’s parents are living. To protect the best interests of the minor child, the law in this area is very broad. The appointment of a guardian might be necessary, for example, in cases of neglect and abuse. Any living parent of the minor child is entitled to receive notice of the guardianship proceeding so that they may participate, if they choose to do so.
The appointment of a guardian may also be necessary where a minor child is entitled to receive property as a beneficiary of an estate. It is important to note that although a parent is the natural guardian of a minor child, the parent is not the legal(?) guardian of the minor child’s property. In New York, a minor child cannot personally receive property greater than $10,000.00. If, for example, a minor child is to inherit $20,000.00, the appointment of a guardian is necessary to handle the inheritance. This can happen where a relative, with the best of intentions, leaves property outright to minor children in their Last Will and Testament without proper planning. A similar situation can arise where a minor child becomes the beneficiary of life insurance policy. In that case, the life insurance company would only pay out the proceeds to a guardian of the property.
A common scenario often necessitating a guardian, but one that can be avoided, is where the parent(s) of a minor child die(s) without a Will. Consider a family of two parents and a minor child. One of the parents, having assets solely in her name, dies without a Will. Many people erroneously assume that the surviving spouse is automatically entitled to the deceased spouse’s assets. Under New York State law, however, part of the decedent’s property will pass to the surviving spouse, and part will pass to the minor child. If the value of the property to pass to the child is greater than $10,000.00, and even though the surviving spouse is the natural guardian of the child, a guardian will need to be appointed for the property of the child. This can be avoided by meeting with us to draft a Will that creates trusts for minor children and nominates guardians over the person and property of those children.
There are other situations in which a guardian is required. In a sad case, I was once involved in a matter where a single mother of minor children fell ill. Their father had predeceased her. In that case, the appointment of a guardian over the person and property of her minor children was necessary since she was unable to handle their affairs.
The need for a guardian also arises where a child is developmentally disabled. Disabilities must be permanent in nature or likely to continue indefinitely, and include cerebral palsy, epilepsy, neurological impairments, autism, and traumatic brain injuries. In these cases, the appointment of a guardian is necessary to handle the minor child’s government benefits, financial assets, and health care decisions. We sometimes refer to these guardianships as Article 17-A proceedings.
We can assist with all types of guardianship matters. Please contact us at 914-245-2440 or by e-mail at smd@mfd-law.com.
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